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On-Call Workers and Minimum Wage

15th December, 2010

The Employment Appeal Tribunal (EAT), in the case of South Manchester Abbeyfield Society v Hopkins & Woodworth UKEAT/0079/10, has confirmed that on-call workers are only entitled to be paid for the on call hours for which they are awake for the purpose of working.

Mrs Woodworth was employed as a housekeeper, and her basic hours were 8.30am to 2pm and then 4pm until 6pm Saturday to Thursday. She was also required to be ‘on call’ overnight from 9pm until 9am. In addition to her salary, Mrs Woodward was also provided with a fully serviced flat and food.

Mrs Woodworth (and her colleague Mrs Hopkins, who worked for the Appellant in similar circumstances) brought a claim, arguing that under the Minimum Wage Regulations 1999, the hours they were on call were hours during which they were ‘at work’ and were therefore entitled to be paid for this work at the national minimum wage rate (at least). The Employment Tribunal agreed, and awarded compensation.

The employer appealed to the EAT, who considered the National Minimum Wage Regulations 1999, particularly Regulation 15 (1A) which states:

“In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being at work when the worker is awake for the purpose of working.”

The EAT subsequently remitted the case to a fresh tribunal to consider how long the respondent spent ‘awake for the purpose of working.’

So, what are an employer’s obligations when it comes paying on-call workers? Regulation 15 (1) states that ‘time work’ (which is subject to the requirement to pay at least minimum wage) includes time when a worker is ‘available at or near a place of work for the purpose of doing time work and is required to be available for such work’. There are exceptions where the worker is entitled to spend the time at home, or the worker’s home is at or near the place of work. As illustrated by the case above, the worker must also be ‘awake for the purpose of working’.

Regulation 15 only applies to workers who are ‘paid by the hour’, but there are similar provisions for salaried workers in Regulation 16.

In addition to the obligations under all the minimum wage regulations, an employer who employs workers who are required to be on call must also be aware of the provisions of the Working Time Directive 2003 (WTR). ‘Working time’ for the purpose of the Working Time Directive may be construed slightly differently to ‘time work’ under minimum wage regulations, and therefore, although you may not have to pay the employee for the time spent on call, it may not constitute a ‘rest period’ for the purpose of the WTR.

There may be other issues which will need to be considered, including any rights the employee may have under their contract of employment. It is advisable to have an on-call policy in place. If you would like us to review your existing on-call policy (alongside your contract of employment and other policy documentation), please contact Helen Watson on 01244 405565 or email here her. Alternatively please visit aarons.weareweb.space/employment

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